Thursday, July 23, 2015

In a Chamber judgment in Oliari and Others v. Italy, (ECHR, July 21, 2015), the European Court of Human Rights in a Chamber judgment awarded damages to three same-sex couples whose relationships were not adequately protected by Italian law. While the award was unanimous, 3 concurring judges thought that the case could be decided on narrower grounds than did the 4-judge majority opinion. The Court's press release describes the majority opinion in part as follows:

In previous cases, the Court had already found that the relationship of a cohabitating same-sex couple living in a stable de facto partnership fell within the notion of “family life” within the meaning of Article 8. It had also acknowledged that same-sex couples were in need of legal recognition and protection of their relationship....

The Court considered that the legal protection currently available in Italy to same-sex couples ... not only failed to provide for the core needs relevant to a couple in a stable committed relationship, but it was also not sufficiently reliable. Where registration of same-sex unions with the local authorities was possible – only in a small share of municipalities in Italy – this had merely symbolic value, as it did not confer any rights on same-sex couples.

As regards the possibility, since December 2013, to enter into “cohabitation agreements”, such contracts were limited in scope. They failed to provide for some basic needs ... such as mutual material support, maintenance obligations and inheritance rights. The fact that cohabitation agreements were open to any set of people who were cohabiting, such as friends, flatmates or carers, showed that those agreements did not primarily aim to protect couples. Furthermore, such a contract required the couple concerned to be cohabiting, whereas the Court had already accepted that the existence of a stable union between partners was independent of cohabitation, given that many couples – whether married or in a registered partnership – experienced periods during which they conducted their relationship at long distance, for example for professional reasons.

Among the authorities cited by the majority was the U.S. Supreme Court's recent Obergefell decision. A Chamber judgment may be appealed to the Grand Chamber. Frontiers Media reporting on the decision points out that Italy is the only major Western European country that does not provide either civil partnerships or same-sex marriage.